Rajasthan High Court - Jodhpur
Smt. Bhanwri vs State Of Rajasthan (2024:Rj-Jd:41783) on 7 October, 2024
Author: Rekha Borana
Bench: Rekha Borana
[2024:RJ-JD:41783]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 3789/2024
Smt. Bhanwri W/o Late Shri Fatta Ram Siyag, Aged About 45
Years, R/o Village Post Gogelao, Tehsil And District Nagaur
(Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through Commissioner, Department
Of Transport, Government Of Rajasthan, Jhalana
Institutional Area, Jhalana Doongri, Jaipur.
2. The Joint Transport Commissioner (Rules), Department Of
Transport, Government Of Rajasthan, Jhalana Institutional
Area, Jhalana Doongri, Jaipur.
3. The Regional Transport Officer, Ajmer.
4. The District Transport Officer, Nagaur, District Nagaur.
----Respondents
For Petitioner(s) : Mr. Vivek Firoda
For Respondent(s) : Mr. Sajjan Singh Rathore, AAG with
Mr. Rajendra Singh
HON'BLE MS. JUSTICE REKHA BORANA
Order
Reportable
07/10/2024
1. The present writ petition has been preferred against the
order dated 23.02.2024 (Annex.12) whereby the application as
preferred by the petitioner for transfer of the license issued to her
husband, for running the motor driving school, has been rejected.
2. The facts are that a license for running a Motor Driving
School (hereinafter referred to as, 'the School') was issued to late
Shri Fatta Ram, husband of the present petitioner. The said
license was time to time renewed and holds valid till the year
2027. Unfortunately, Shri Fatta Ram expired in the year 2023 and
the petitioner therefore, vide application dated 30.10.2023,
[2024:RJ-JD:41783] (2 of 10) [CW-3789/2024]
prayed for transfer of the license in her name. However, the said
application has been rejected vide the order impugned dated
23.02.2024 on the ground that there is no provision in the Central
Motor Vehicles Rules, 1989 (hereinafter referred to as, 'the Rules
of 1989') or in the Motor Driving School Registration Scheme,
2018 (hereinafter referred to as, 'the Scheme of 2018') for
transfer of the license.
3. Learned counsel for the petitioner submits that although the
license in question was valid upto the year 2027, the respondent-
Department directed for closing down of the School only on the
premise of death of the licensee i.e. husband of the petitioner.
Learned counsel submits that it was not a case of breach of any of
the conditions of the license and hence, the license which was
valid till the year 2027, could not have been terminated only on
the premise that there was no provision prescribing for transfer of
license in the name of successor/legal representative of the
deceased.
Learned counsel submits that if the successor/legal
representative is qualified in terms of the Scheme of 2018, the
license ought to have been transferred in name of such successor/
legal representative.
4. In support of his submission, learned counsel relied upon a
judgment of the Madras High Court in the case of
V. Krishnasamy vs. The Licensing Authority-cum-Regional
Transport Officer & Anr.; Writ Petition No.29797 of 2008
(decided on 20.01.2009) wherein the Court, in an akin situation,
observed that in cases where one of the legal heirs fulfills all the
qualifications prescribed under Rule 24 of the Rules of 1989, there
[2024:RJ-JD:41783] (3 of 10) [CW-3789/2024]
cannot be any impediment for the licensing authority to consider
the question of transmission. Therein, the Court observed that a
blind rejection of the request for transfer or transmission by the
Transport Commissioner, cannot be permitted.
5. Learned counsel also relied upon a circular issued by the
State of Uttar Pradesh wherein a specific provision for transfer of
the license in name of a successor, on the death of the licensee,
has been incorporated.
6. Learned counsel, while making the aforesaid submissions,
argued that in absence of any specific provision, the Court can suo
motu direct for an equitable relief to be granted in favour of the
petitioner.
7. Per contra, learned Additional Advocate General appearing on
behalf of the State submitted that there being no specific provision
for transfer of a license in favour of a successor/legal
representative on death of the licensee, no such order could have
been passed by the licensing authority and rightly so. Learned
AAG submitted that even otherwise, an amendment has been
introduced in the Scheme of 2018 and as per the said
amendment, the petitioner would be under an obligation to apply
fresh and she would be entitled for a license if found eligible in
terms of the amended provisions.
8. Heard learned counsel for the parties and perused the
material available on record.
9. The copy of the judgment as passed by the Madras High
Court in the case of V. Krishnasamy (supra) and the circular of
State of U.P. are taken on record.
[2024:RJ-JD:41783] (4 of 10) [CW-3789/2024]
10. What is admitted on record is that a license/authority letter
for establishment of a motor driving school was issued in favour of
husband of the petitioner on 19.11.2012. The said license having
been renewed from time to time and the same being valid till
07.11.2027 is also not under dispute. An application for transfer
of the license/authority letter in her name was preferred by the
petitioner on 30.10.2023 on the unfortunate demise of her
husband on 03.06.2023. However, on no action been taken upon
her application, she preferred a writ petition (S.B. Civil Writ
Petition No.1192/2024) whereby vide order dated 30.01.2024, the
respondent authorities were directed to decide the application as
filed by the petitioner within a period of four weeks.
11. It is only in pursuance to the said order that the application
as preferred by the petitioner was decided vide impugned order
dated 23.02.2024 whereby the same was rejected on the premise
that there is no provision in the Rules of 1989 or in the Scheme of
2018 for transfer of a Motor Driving School license. The licensing
authority, vide the said order, proceeded on to observe that the
license as issued in favour of the School, would be deemed to
have been cancelled and hence, directed the petitioner to deposit
the same with the respondent-Department with immediate effect.
12. In the specific opinion of this Court, the approach of licensing
authority cannot be said to be in terms of the equitable principles
of law. Evidently, the application of the petitioner has been
rejected on the premise that there is no provision prescribing for
transfer of license but then, a bare perusal of the Scheme of 2018
makes it clear that there is no provision for automatic cancellation
of the license on death of a licensee, either. In absence of any
[2024:RJ-JD:41783] (5 of 10) [CW-3789/2024]
provision for automatic cancellation of a license on the death of a
licensee, the licensing authority could not have proceeded on to
cancel the same too.
13. Further, it is evident on record that the license has been
sought to be cancelled only on the premise of there being no
provision for transfer of the same. It is not the case of the
respondents that any of the conditions of the license had been
breached or that the petitioner was not qualified in terms of the
Scheme of 2018 to be granted the said license.
14. True it is that there is no specific provision providing for
transfer of license on the death of a licensee but then, there is no
specific provision even restraining for the same. Meaning thereby,
the Rules of 1989 and the Scheme of 2018 are silent on the
aspect as to what would be the consequence on the death of a
licensee. Neither do they provide for automatic cancellation of the
license nor for transfer of the same in favour of the
successor/legal representative of the licensee.
15. In the specific opinion of this Court, in such a situation, it is
the bounden duty upon the Courts to balance the equities and to
ensure the grant of equitable relief. As is the settled position of
law, in the matters where the statute is silent regarding any
eventuality, the Courts would not be handicapped to pass
appropriate orders to grant an equitable relief so as to justify the
interest of justice and to balance the equities in favour of the
contesting parties.
The said settled principle of law has been reiterated time and
again by the Hon'ble Apex Court and in its recent judgment of
Central Council for Research in Ayurvedic Sciences and Ors.
[2024:RJ-JD:41783] (6 of 10) [CW-3789/2024]
vs. Bikartan Das and Ors.; AIR 2023 SC 4011 while discussing
the two cardinal principles of extraordinary jurisdiction under
Article 226(3) of the Constitution of India, the Hon'ble Apex Court
held as under:
"51...It is perfectly open for the writ court, exercising this
flexible power to pass such orders as public interest dictates &
equity projects. The legal formulations cannot be enforced
divorced from the realities of the fact situation of the case.
While administering law, it is to be tempered with equity and if
the equitable situation demands after setting right the legal
formulations, not to take it to the logical end, the High Court
would be failing in its duty if it does not notice equitable
consideration and mould the final order in exercise of its
extraordinary jurisdiction. Any other approach would render the
High Court a normal court of appeal which it is not."
16. While reiterating the basic principle that justice, good
conscience and equity plays a supplementary role in enabling the
Courts to mould the relief in accordance with the circumstances,
the Hon'ble Apex Court in its judicial pronouncement in the case of
M. Siddiq (D) thr. L.Rs. Vs. Mahant Suresh Das and Ors.; 5
(2020) SCC 1 observed as under:
"673. The common underlying thread is that justice, good
conscience and equity plays a supplementary role in enabling
courts to mould the relief to suit the circumstances that present
themselves before courts with the principle purpose of ensuring a
just outcome. Where the existing statutory framework is
inadequate for courts to adjudicate upon the dispute before
them, or no settled judicial doctrine or custom can be availed of,
courts may legitimately take recourse to the principles of justice,
equity and good conscience to effectively and fairly dispose of
the case. A court cannot abdicate its responsibility to decide a
dispute over legal rights merely because the facts of a case do
not readily submit themselves to the application of the letter of
the existing law. Courts in India have long availed of the
principles of justice, good conscience and equity to
supplement the incompleteness or inapplicability of the
letter of the law with the ground realities of legal disputes
to do justice between the parties. Equity, as an essential
component of justice, formed the final step in the just
adjudication of disputes. After taking recourse to legal
principles from varied legal systems, scholarly written
[2024:RJ-JD:41783] (7 of 10) [CW-3789/2024]
work on the subject, and the experience of the Bar and
Bench, if no decisive or just outcome could be reached, a
judge may apply the principles of equity between the
parties to ensure that justice is done. This has often found
form in the power of the court to craft reliefs that are both legally
sustainable and just."
17. Further, as held in S.S. Bola & Ors. vs. B.D. Sardana & Ors.;
AIR 1997 SC 3127 "Equity steps to where the law has left yawning
gap". Meaning thereby, it is the settled principle that when there is no
law operating the field, the Courts are required to exercise its equity
jurisdiction. When no positive law is discernible, Courts turn to equity as
a source of applicable law.
18. Keeping into consideration, the above settled principle, coming on
to the present matter, it is an admitted position that law is silent as to
what would be the fate of a license which was issued totally in
accordance with law, on the death of a licensee. Dealing with an akin
situation and the same provisions of law, the Madras High Court in the
case of V. Krishnasamy (supra) observed as under:
"4. The stand taken by the respondents is that a
license granted to a person to run a Driving School,
cannot automatically get transferred or transmitted
by way of succession, since the person holding the
license is required to have certain qualifications
prescribed under Rule 24. In other words, the
license to run a Driving School is not treated
exactly like a right in property. But is does not
mean that the respondents cannot even
examine the claim of a person who in law
inherits the property of the deceased
Licensee, in terms of the Rules. In such cases,
if one of the legal heirs fulfills all the
qualifications prescribed under Rule 24, there
cannot be any impediment for the Licensing
Authority to consider the question of
transmission.
5. As a matter of fact, the learned counsel for
the petitioner brought to my notice a letter issued
by the Transport Commissioner bearing No.88352/
H2/2003 dated 5.2.2004 by which the Transport
[2024:RJ-JD:41783] (8 of 10) [CW-3789/2024]
Commissioner has take a similar stand. In such
circumstances, the blind rejection of the
request for transfer or transmission by the
Transport Commissioner, cannot be permitted.
Consequently the writ petition is disposed of with a
direction to the first respondent to consider the
eligibility of the petitioner with reference to Rule 24
of the Central Motor Vehicles Rules, 1989 and to
pass appropriate orders, if the petitioner is found to
be qualified in accordance with the Rule 24. This
exercise shall be done by the first respondent,
within a period of eight weeks from the date of
receipt of a copy of this order. No costs.
Consequently, connected miscellaneous petition is
closed."
19. Further, the circular dated 27.04.2023 as issued by the
Transport Department of the Government of U.P. also deserves
reference wherein a specific provision for transfer of a license in
favour of one of the successors/legal representatives on death of
the licensee has been provided. Clause 9 of the said circular is
reproduced hereunder:
"(9) Driving Training School संस्थान के स्वामी की मत्ृ यु
होने की दशा में उत्तराधिकार प्रमाण पत्र के आधार पर
उत्तराधिकारी का नाम लाइसेंस पर अंकित किया जायेगा। एक से
अधिक उत्तराधिकारी होने की दशा में सभी उत्तराधिकारियों से एक
शपथ पत्र प्राप्त करते हुए किसी एक उत्तराधिकारी के नाम
संस्थान का लाइसेंस जारी किया जा सकेगा।"
20. In view of the overall analysis; the above judicial
pronouncements; and in view of the basic principle governing
equity, justice and good conscience, this Court is also of the clear
view that the blind rejection of the request of the petitioner for
transfer of the license only on the premise of there being no
provision for the same, cannot be held to be good and cannot be
permitted.
[2024:RJ-JD:41783] (9 of 10) [CW-3789/2024]
21. So far as the amended provision in the Scheme of 2018 is
concerned, evidently, the same could not have a retrospective
application. The license as issued in the year 2012 cannot be
subjected to the amended provision introduced subsequently. But
then, the petitioner would definitely be required to qualify in terms
of the Rules of 1989 which governed the parties at the time when
the license was issued.
22. As a consequence of the above discussion, the order
impugned dated 23.02.2024 is hereby quashed and set aside.
The respondent authorities shall be under an obligation to
consider the application dated 30.10.2023 as preferred by the
petitioner, denovo, and consider the eligibility of the petitioner
with reference to Rule 24 of the Rules of 1989. If the petitioner is
found to be qualified in terms of Rule 24 of the Rules of 1989,
appropriate orders for transfer of the license issued in favour of
her husband, be passed in her favour. However, if the petitioner is
not found qualified in terms of Rule 24 of the Rules of 1989, the
respondent authorities shall be at a liberty to proceed in
accordance with law.
Appropriate time for filing the documents in support of her
qualification in terms of Rule 24 of the Rules of 1989, shall be
granted to the petitioner before passing the final order. The order
be passed by the respondent authorities positively, within a period
of eight weeks from the receipt of a copy of this order.
23. Before parting, this Court cannot restrain itself from
reminding the State of the basic fact that the Constitution of India
casts a duty upon the State to bear into mind, the basic principle
of promoting the welfare of the people, while framing laws and
[2024:RJ-JD:41783] (10 of 10) [CW-3789/2024]
policies. Hence, as a word of advise, it is expected of the State of
Rajasthan to take up the issue in larger public interest and
consider the inclusion of some provision for transfer of the license
in the name of successor/legal representative on the death of a
licensee, in the Scheme/Rules governing issuance of the license
for running of a Motor Driving School.
It is expected of the learned AAG to advise the State
appropriately.
24. With the above observations, the present writ petition is
disposed of.
25. Stay petition and all pending applications, if any, also stand
disposed of.
(REKHA BORANA),J
379-T.Singh/-
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